No. CV 01 0811597 S
January 26, 2004
RULING AND ORDER
The issue presented is whether the plaintiff's attorneys should be disqualified. The facts are not contested. This is a case arising out of an automobile accident. After receiving notice of the suit, the defendant's insurer assigned the defense to Mathis Associates. For a period of time Joseph Dombrosky was the attorney primarily representing Ms. Ryea. He met personally with her for about an hour and held conversations protected by the attorney-client privilege; he had one or two other less lengthy communications. Mr. Dombrosky subsequently and coincidentally gained employment with Regnier, Taylor, Curran and Eddy, the law firm representing the plaintiff, where he is still employed. Ms. Ryea testified briefly about the situation and indicated she did not choose to waive the rather obvious conflict. Mr. Milne, the plaintiff, testified that he was happy with his representation and did not want to change counsel.
The ethics of the situation are quite clear, at least in principal. Most fundamentally, Mr. Dombrosky may not reveal to his current law firm anything involving this case. He testified that he has not done so and that he is very aware of his obligations. I credit his testimony and see no reason to suspect that there would be any intentional disclosure of any kind. See, e.g., Rule 1.9 of the Rules of Professional Conduct; Rule 1.8(b).
The difficulty is presented by Rule 1.10(b) and the commentary thereto, which emphasizes a functional approach. When a lawyer with confidential information joins a firm representing his former client's adversary, there is a presumption of impropriety which arises not because of actual communication or actual prejudice to the former client, but because of the possibility of accidental disclosure and the appearance of impropriety. If there is an opportunity for accidental disclosure in these circumstances, a breach of confidence will be presumed and disqualification is an appropriate remedy. See Hall v. Celanese Corporation, 513 F.2d 568, 572 (2d Cir. 1975); Horch v. United of Omaha Life Insurance Co., 1999 Ct. Sup. 8776, 25 Conn. L. Rep. 18 (1999) (Devlin, J.).
Our case law has quite uniformly held that an appearance of impropriety alone is generally not sufficient to justify disqualification, where the competing concern is the interest of another party in retaining counsel of choice. See State v. Jones, 180 Conn. 443 (1980); Goldberg v. Corporate Air, Inc., 189 Conn. 504 (1983); Bergeron v. Mackler, 225 Conn. 391, 397-400 (1993).
The defendant cites Bergeron for the proposition, in dictum, that a law firm is automatically disqualified in the circumstances of this case. It appears to me that the dicta more squarely states that the specific lawyer is disqualified.
The court, the public and Ms. Ryea need to be satisfied, and indeed guaranteed, that there can be no accidental disclosure. I believe that such guarantee could be made if an adequate "Chinese wall" were constructed. The state of the evidence is, thus far, somewhat lacking, because there has been no specific evidence of what Chinese wall has been constructed. There was satisfactory evidence that no confidence has thus far been betrayed. But Mr. Dombrosky did not know what specific procedures had been implemented to isolate him from anything to do with the instant matter.
I suspect that philosophically there can be no absolute certainty in life. But we are dealing with realities rather than philosophies.
I believe that processes such as appeared in Kala v. Aluminum Smelting Refining Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998), and Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001), are appropriate in this case. I therefore issue the following ruling:
The plaintiff's attorney is to submit an affidavit by February 15, 2004, which states in detail the procedures which have been implemented in the construction of the Chinese wall. A copy should he forwarded to me at civil caseflow. On review of the document, I will indicate whether the procedures are considered adequate.